III. Clear and Convincing Proof Horwitz Affirmatively Misled the Court on September 7 and 23, 2011 as to the Creation of Real MCSO (Nos. 11-16)

The Google evidence Defendants received in August 2011 inspired their first supplemental motion for sanctions, which sought, for the first time, dismissal as a sanction for Plaintiff’s perjured affidavit. (See Ex. 15.) Allegations 11-16 concern Horwitz’ misrepresentations in Plaintiff’s September 7, 2011 Response and during a September 23, 2011 hearing, as to the state of his own and his client’s knowledge about Real MCSO.

First, Horwitz falsely stated in his September 7 response that Defendants’ motion concerned www.realmcsdexposed.com, but that the Google evidence concerned www.mcsdexposed.com. (Ex. 18 at ¶ 6.)

To further confuse the issue, he added www.realmcsdexposed.com was “different than www.mcscexposed.com.” (Id.) Defendants never referenced any of those websites in pleadings. Horwitz contends all of those mis-cites, as well as the 4 additional mis-cites in the affidavits accompanying his June 21 response were inadvertent typos. (Tr. 37-38, 455-56.) However,

Horwitz never cited the blog correctly in either submission and further argued falsely that Defendants’ Google evidence concerned sites other than that to which the sanctions motion was directed. (Ex. 18 at ¶ 6.) Further, Horwitz argued the Court should deny Defendants’ motion based on Plaintiff’s affidavit denying any knowledge as to the creation of Real MCSO. (Id. at ¶¶ 4-5.)

As described below, at the time Horwitz advanced that argument, he knew it was premised on false evidence, even if, giving him the benefit of every doubt, he did not know it was false when it was first advanced in June.

Horwitz amplified the misconduct two weeks later at the September 23 hearing before the Magistrate Judge, where he offered a rambling diatribe ridiculing the Google evidence, which culminated in a blatant misrepresentation that he did not have an answer to the court’s inquiry as to how the creator of Real MCSO obtained the documents. (See Ex. 23 at 8-17.) [FN5]

= = = = =

FN5 Horwitz compounded his conduct during the hearing by falsely suggesting he was referencing Shadow, rather than Real MCSO, when responding to the court’s inquiry. (Tr. 1236-45.) The transcript reveals that the court’s inquiry and Horwitz’ comments concerned Real MCSO. (Ex. 23 at 8-17.)

= = = = =

Any doubts as to the integrity of Horwitz’ September 7 and 23 representations were dispelled by his own actions at Plaintiff’s deposition on September 14. There, Horwitz’ assertion of unidentified “privileges” when Plaintiff was asked to describe his affiliation with and knowledge of Real MCSO and Shadow, illustrated that at the same time he was assailing the Google evidence in court, Horwitz and his client were simultaneously laying the groundwork for their desperate attempt to blame the postings on his wife. [FN6] (Ex. 19 at 447-55, 504-13.)

= = = = =

FN6 When Sotos first challenged the assertion because no attorney/client privilege was implicated, Horwitz repeated “[i]t’s privileged.” (Ex. 19 at 504.) When Sotos reframed his question so no attorney/client privilege was arguably implicated, Horwitz confirmed he was asserting a privilege. (Id. at 510.) During the hearing, Horwitz confirmed he was referencing the spousal privilege. (Tr. 100, 109.)

= = = = =

Part 6 tomorrow.